Punjab-Haryana High Court
Rajwinder Kaur vs State Of Punjab And Others on 7 February, 2014
Author: Rajesh Bindal
Bench: Rajesh Bindal
CWP No. 4780 of 2011 [1]
IN THE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
C.W.P. No. 4780 of 2011 (O&M)
Date of decision: 7.2.2014
Rajwinder Kaur
.. Petitioner
v.
State of Punjab and others
.. Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Ms. Anu Chatrath Kapur, Advocate for the petitioner.
Mr. Suvir Sehgal, Addl. Advocate General, Punjab.
...
Rajesh Bindal, J.
The petitioner has approached this court with a grievance that she had not been awarded five additional marks for having passed Middle and Matric examination from the schools situated in the rural areas while considering her candidature for the post of Teaching Fellow.
Learned counsel for the petitioner submitted that in response to the advertisement issued on 5.9.2007, the petitioner applied for the post of Teaching Fellow. In terms of the advertisement issued, five additional marks were to be granted to the candidates who had passed their Middle and Matric examination from the schools situated in rural areas. The petitioner was not awarded those marks, whereas other candidates were. She further submitted that award of those marks was upheld by a Division Bench of this Court in Sudesh Rani v. State of Punjab, 2010 (5) SLR 768, hence, denial of those marks to the petitioner is illegal, when all other candidates in the same Kumar Manoj 2014.02.13 09:26 I attest to the accuracy and integrity of this document CWP No. 4780 of 2011 [2] selection process had been awarded those marks. She further submitted that subsequent judgment of Full Bench of this Court in Abhishek Rishi v. State of Punjab and others, 2013(3) SCT 1 cannot be made applicable in the case in hand for the reason that it had to be applied for the advertisements issued subsequent thereto.
On the other hand, learned counsel for the State submitted that once a Full Bench of this court has opined that no additional marks could be awarded to a candidate for having passed his Middle and Matric examination from the schools situated in rural areas, nothing lies in the mouth of the petitioner now to claim that benefit. No mandamus can be issued to perpetuate the illegality, as is claimed by the petitioner. The law laid down by the Full Bench of this Court has to be respected and the petitioner cannot seek a direction to award marks, which is contrary to the law laid down by this court.
Heard learned counsel for the parties and perused the paper book.
The issue sought to be raised by learned counsel for the petitioner, namely, that judgment of Full Bench of this Court in Abhishek Rishi's case (supra) has to be applied prospectively and for the selection process, which was initiated prior in time, this court can direct award of five additional marks for having passed Middle and Matric examination from the schools situated in the rural areas in terms of the conditions laid down in the advertisement, was considered by this court in C.W.P. No. 15645 of 2011-- Kultar Singh v. State of Punjab and others, decided on 30.1.2014, wherein it was opined that firstly there is no observation made by the Full Bench of this Court in Abhishek Rishi's case (supra) that it will have prospective application which is a device innovated to avoid re-opening of settled issues and to prevent multiplicity of proceedings. There is no prospective over- ruling unless it is indicated in a particular decision. Further, the court merely declares law-- that means that was the law and that is the law. The relevant paras thereof are extracted below:
"The contention raised by learned counsel for the respondents that judgment of Full Bench of this court in Kumar Manoj 2014.02.13 09:26 I attest to the accuracy and integrity of this document CWP No. 4780 of 2011 [3] Abhishek Rishi's case (supra) should be taken to be laying down law for prospective application is to be noticed and rejected. There was no such observation made by the Full Bench of this Court in Abhishek Rishi's case (supra). Even the judgment of Full Bench of this Court in Amarbir Singh's case (supra), which has been cited by learned counsel for the private respondents in support of this argument, provides an answer against him. While referring to various judgments of Hon'ble the Supreme Court on the issue, it was opined that prospective declaration of law is a device innovated to avoid re-opening of settled issues. However, there shall be no prospective over-
ruling unless it is so indicated in a particular judgment. The relevant paras thereof are extracted below:
"65. The preposition of doctrine of prospective overruling has been considered in several other decisions as well i.e. Ashok Kumar Gupta v. State of U. P. 1997(2) SCT 381, M/s Raymond Ltd. v. M. P. Electricity Board, 2001(1) RCR (Civil) 330, Somaiya Organics (India) Ltd. and another v. State of U. P. and another (2001) 5 SCC 519, Harsh Dhingra v. State of Haryana 2002(2) RCR (Civil) 450, M. A. Murthy v. State of Karnataka and others 2003(4) SCT 251: 2003 (7) SCC 517, Dr. Saurabh Choudhary and others v.
Union of India and others, 2004(2) SCT 890: 2004(5) SCC 618, Employees State Insurance Corporation and others v. Jardine Henderson Staff Association and others, 2006(3) SCT 691: 2006(6) SCC 581, Amrik Singh Lyallpuri v. Union of India and others 2011 (6) SCC 535.
66. The consistent view of the Supreme Court is that prospective declaration of law is a device innovated to avoid reopening of settled issues and to prevent multiplicity of proceedings. It is also a device adopted to avoid uncertainty and avoidable litigation. The object of Kumar Manoj 2014.02.13 09:26 I attest to the accuracy and integrity of this document CWP No. 4780 of 2011 [4] prospective declaration of law is that all actions taken contrary to the declaration of law prior to the date of declaration are validated. This is done in larger public interest. According to the Supreme Court, it was a rule of "all judicial craftsmanship with pragmatism and judicial statesmanship as a useful outline to bring about smooth transition of the operation of law without unduly effecting the rights of people who acted upon the law adopted prior to the date of judgment overruling the previous law. There shall be no prospective overruling unless it is so indicated in the particular decision by the Supreme Court under Article 142 of the Constitution. Recently in Bangalore City Cooperative Housing Society Ltd. v. State of Karnataka and others 2012(3) R. C.R. (Civil) 779: 2012(3) Recent Apex Judgments (R.A.J.) 497: 2012 AIR SC 1395, the Supreme Court has upheld the quashing of the notifications under Sections 4(1) and 6(1) of the Land Acquisition Act, 1894 on the ground that there was no useful scheme approved by the State Government prior to the issue of notifications. In the absence of such approval the land could not be acquired for public purpose. The society's prayer for invoking the doctrine of prospective overruling in favour of those members of the society who had already constructed the houses may not suffer incalculable harm was declined. The Estate Agent had charged huge money from the Society for getting the notifications issued under Sections 4(1) and 6(1) of the 1894 Act and sanction of lay out plan by the BDA. The Supreme Court found no justification to invoke the doctrine of prospective overruling and legitimate the illegal acts committed by the Estate Agent."
[Emphasis supplied] Kumar Manoj 2014.02.13 09:26 I attest to the accuracy and integrity of this document CWP No. 4780 of 2011 [5] The issue had also been gone into by a Full Bench of this Court in Commissioner of Income-Tax v. Smt. Aruna Luthra, (2001) 252 ITR 76, wherein it was opined that a declaration by the court is-- This was the law, this is the law. This is how the provisions have to be construed. The court merely declares law. An earlier decision by the court is "simply no law". Relevant paras thereof are extracted below:
"A court decides a dispute between the parties. The cause can involve decision on facts. It can also involve a decision on a point of law. Both may have bearing on the ultimate result of the case. When a court interprets a provision, it decides as to what is the meaning and effect of the words used by the Legislature. It is a declaration regarding the statute. In other words, the judgment declares as to what the Legislature had said at the time of the promulgation of the law. The declaration is - This was the law. This is the law. This is how the provision shall be construed.
Julius Stone in Social Dimensions of Law and Justice (First Indian Reprint 1999) (Chapter XIV), while dealing with the subject of Judge and Administrator in Legal Ordering, observes as under:
"If, then, a main impulse underlying the stare decisis doctrine is that justice should respect reasonable reliance of affected parties based on the law as it seemed when they acted, this impulse still has force when reliance is frustrated by an overruling. Despite this, it has long been assumed that a newly emergent rule is to be applied not only to future facts, and to the necessarily past facts of the very case in which it emerges, but to all cases thereafter litigated, even if these involved conduct, which occurred before the establishment of the new rule. This has proceeded Kumar Manoj 2014.02.13 09:26 I attest to the accuracy and integrity of this document CWP No. 4780 of 2011 [6] ostensibly on the conceptual basis, clearly formulated since Blackstone, that the new holding does not create, but merely declares, law. So that any prior putative law under which the parties acted is to be regarded as simply not law". (emphasis supplied).
The above observations clearly support the principle that the court merely declares law. An earlier decision as declared by the court is "simply no law".
In the case in hand, nothing has been pointed out from the judgment of Full Bench in Abhishek Rishi's case (supra) that the judgment will have prospective effect. Still further, the selection in the case had not attained finality but were subject-matter of challenge before the court before the judgment in Abhishek Rishi's case (supra) was pronounced. If the criteria followed for selection is considered in the light of law laid down by this Court, the same has to be set aside as to the selected candidates, marks have been awarded for having qualified Middle and Matriculation examination from rural area schools, which has been declared to be ultra vires to the Constitution of India. Selections cannot be upheld at this stage relying on Division Bench judgment of this court, which has been over-ruled. A Full Bench of this Court in Aruna Luthra's case (supra) clearly provides that the court only declared law. An earlier law declared by the court is simply no law. Hence, even this contention of learned counsel for the private respondents is rejected being misconceived." Considering the aforesaid enunciation of law, in my opinion, no direction can be issued at this stage to award additional marks to the petitioner for having passed his Middle and Matric examination from the schools situated in the the rural areas, which will be contrary to the law laid down by a Full Bench of this Court in Abhishek Rishi's case (supra).
For the reasons mentioned above, the writ petition is dismissed.
Kumar Manoj 2014.02.13 09:26 I attest to the accuracy and integrity of this document CWP No. 4780 of 2011 [7]Consequently, all the accompanying applications are also dismissed.
(Rajesh Bindal) Judge 7.2.2014 mk Kumar Manoj 2014.02.13 09:26 I attest to the accuracy and integrity of this document